IN THE HIGH COURT OF LESOTHOIn the
matter between:-TSEKO KHASAKE Applicant
ATTORNEY GENERAL 1st Respondent
COMMANDING C.I.D. (MOHALE'S HOEK) 2nd Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 11th day of September, 1989
This is an application for an order directing the
respondents to release forthwith to the applicant a certain motor
vehicle with Reg.
No. F 1283, the property of the applicant; and
directing the respondents to pay costs of this application.
It is common cause that on the 3rd January, 1988 the
applicant's vehicle mentioned above was seized by the Mohale's
police on suspicion or allegation that the applicant's
brother one Molefi Khasake used the same vehicle to murder one Oankie
with it. The applicant and his said younger brother are
jointly charged with the murder of the said Jankie Sefuthi and one
The respondents are refusing to release the Said vehicle
oh the ground that it is going to be used as an exnibit in the double
trial the applicant and his brother are facing.
It is the applicant's contention that by refusing to
release the table is the respondents are acting unreasonably in as
much as they
can easily take photographs of the said vehicle and
release it to him. He is running a cafe at his home and is using that
in connection with the said business. His family and that of
his younger brother rely wholly on the said business as a means of
their livelihood. The applicant avers that they are likely to suffer
irreparable harm by the continued detention of his motor vehicle.
The first respondent has filed an affidavit in which he
avers that the grant of the order sought by the applicant would
hamper the administration of criminal justice because the
article he asks this Court to release to him will be used in evidence
the trial of the applicant and his brother on two counts of
murder. He submits further that the motor vehicle in question is
retained lawfully in police custody in terms of section 55 of
the Criminal Procedure and Evidence Act 1981.
Mr. Leaba Thetsane is the Crown Counsel to whom the
prosecution of the criminal trial against the applicant and his
been assigned. He avers that he has perused the docket
relating to this matter and has formed the opinion that there is a
against the said applicant's brother on both counts of
against the applicant on the count relating to the
unlawful killing of the deceased Joseph Sefuthi.
He submits further that the evidence discloses that
the motor vehicle in question was used by the applicant's bother.
in the alleged murder of Jankie Sefuthi and that it
was also used to inflict certain bodily injuries on the. deceased-
before both the applicant and Molefi Khasake
finished him off The motor vehicle in question was used as a weapon
to inflict grievious
bodily harm injuries on the two deceased persons
and that it is going to be used in the trial of the applicant and
The law on this subject is clearly set out in our
Criminal Procedure and evidence act 1981 Mr. Pheko. attorney "for
conceded that as far as the law is concerned
there is no doubt that the 2nd respondent is keeping
the vehicle lawfully. His attention is that the 2nd respondent is
by refusing to take the photographs of the
vehicle and to release it to the applicant. The applicant is
suffering extreme hardship,
because his cafe business cannot be
operated without the vehicle. He submitted that on the principles
of equity this Court must
grant the application.
Section 55 (1) and (2) read as follows:
"(1) If Criminal proceedings are instituted
in connection with any article referred to in section 52 (c) and
article is required at the trial for the purposes of evidence or
for the purposes of an order of Court, the police official concerned
shall, subject to the provisions of subsection (2), deliver such
article to the Clerk of the Court where such Criminal proceedings
instituted or to the Registrar of the High Court, as the case may be.
(2). If it is by reason of the nature, bulk or value
of the article in question impracticable or undesirable that the
be delivered to the Clerk of the Court in terms of
Sub-section (1), the Clerk of the court may require the police
to retain the article in police custody or in such
other custody as may be determined in terms of section 52 (c)."
There is evidence before this Court that the 2nd
respondent is keeping the said vehicle per instructions of the clerk
of court of
Mafeteng. Mr. Mohapi, counsel for the respondents has
submitter; that photographs of the vehicle inquestion are secondary
and that it would not be just to force the Prosecution to
pert with the vehicle because it is the best evidence they have.
17 of the Evidence in Civil Proceedings Proclamation No, 72
of 1830 reads as follows:
"Every party on whom in any case it shall be
incumbent to prove any fact, matter or thing, shall be bound to give
the best evidence
of which from its nature such fact, matter or thing
shall he capable: and no evidence as to any such fact, matter or
be admissible in any case in which it was in the power of
the party who proposes to give such evidence to produce, or cause to
produced, Setter evidence as to such fact, matter or thing, except
by consent of the adverse party to the suit, or when such adverse
party shall by law be precluded from disputing any such fact
matter or thing, by reason of any admission proved to have been
Be that as it may my difficulty is with regard to the
order of disposal that the Court may be inclined to make at the end
of the trial
if the accused are convicted. In most criminal trials
murder weapons are never returned to the accused person if he is
The usual disposal order is to order that the
weapon be destroyed or be forfeited to the State.
Firearms are usually forfeited to the State. I do not know what the
Court will do
with the motor vehicle in question.
In a recent case of R. V. M. Ramarou CRI/T/24/87 (
unreported) a motor car was used to murder one person and to cause
injuries to another. Photographs of the vehicle were
taken and the vehicle was released to its owner who was not involved
commission of the offence. In the present case the owner of
the vehicle is involved in the commission of the offence
to the allegations by the respondents. I am of the opinion
that it would be unwise to release the vehicle at this stage..
Regarding equity our law seems to be very clear as
stated in the case of Lazarus v. Wessels, 1903 T.S. 509 where Sir
is quoted as having said:
"The court cannot grant equitable relief, if by so
doing it would be going contrary to a well-defined principle of the
Law, or to some statutory provision."
I think in the present case the Court would be going
contrary to the clear provisions of sections 52 and 55 of the
and Evidence Act 1981 if it granted this
In the result the application is dismissed with costs.
JUDGE 11th September, 1989.
For the Applicant - Mr. Pheko For the Respondents
- Mr. Mohapi.
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